Hugh’s going to win? College taken to court

Damien Shannon, a postgraduate rejected by St Hugh’s, is attempting to sue on the grounds of “selecting by wealth.” He claims that the College’s refusal to admit him, after he failed to demonstrate the ability to provide £12,900 for living costs, contravenes his human rights.

He cites Article 2 of Protocol Number 1 of the European Convention on Human Rights, claiming it guarantees a right to higher education. The exact wording of the Article is: “No person shall be denied the right to education.”

The case was presided over by Judge Armitage QC at Manchester County Court, which began on Friday 15th February, but he has reserved judgement until an unspecified date.

On Tuesday, Jane Elizabeth Sherwood, Director of Postgraduate Admissions at the University of Oxford, had to apologise after she inaccurately stated that other universities also used so-called “wealth tests”.

Mr Shannon clarified his stance in an article for The Guardian website on 21st January. He emphasised how he took issue at the specific amount of money required as a guarantee by the College: “It is crucial to point out that it is not necessarily unlawful to select on the basis of financial criteria, providing there is an objective and reasonable justification for doing so and that the means employed are proportionate.

“My primary argument before the court is that it cannot be considered proportionate to refuse access to those who cannot afford to socialise or dine in college, or live in a room of a particular size and cost.”

Mr Shannon, 26, of Salford, was offered a place at St Hugh’s to read for an MSc in Economic and Social History. Having fulfilled the academic requirements for the course, he was then prevented from taking up his place because he could not prove that he could provide £12,900 in addition to his tuition fees to cover his living costs.

This includes costs of eating in hall, socialising and buying clothes, and a fixed amount of rent at £7,250, even though Mr Shannon claims he negotiated a contract costing less than this.

As a result he accuses St Hugh’s of discriminating against less wealthy students who cannot afford to eat and socialise in college.

Other Oxford postgraduates echoed Shannon’s concerns, emphasising the difficulties they had in getting funding. One student studying for a DPhil in English at St John’s said: “My family are a low income one, so the necessity from Oxford / Cambridge to provide financial guarantee in June always proves a problem – mainly because, very often, people like me obtain funding at the very last minute through charities or AHRC [Arts and Humanities Research Council] reserve lists because people do drop out.”

She also questioned the usefulness of the guarantee: “People do still, of course, run out of money even if they’ve secured funding – simply because their project takes longer than planned – so a financial guarantee is somewhat meaningless in that sense.”

Another student studying for a DPhil in Chemistry said how she thought it was “quite a lot easier for internal candidates as they can speak to the professors about the process. It also cost £50 to apply, which I thought was quite cheeky.”

She added: “St John’s required me to prove how I would manage to pay for myself for the next four years. You also had to fill in a ridiculous form stating the exact amount of money you would need for the four years, which was stupid because College and University fees change yearly so it was all just a guesstimation really, and then show you had the money to cover that amount.”

Shannon’s MP, Hazel Blears, Member for Salford and Eccles, has taken up his case with enthusiasm, commenting to The Oxford Student: “I’m pleased that the judge is giving Damien Shannon’s claim the serious consideration it deserves.

“Nobody should be prevented from continuing their education on the basis of wealth. Not only is that deeply unfair, it means the talent of some of our brightest people may not be fully realised and our country and economy will miss out. If a student is deemed intelligent enough to study at Oxford they are surely capable of budgeting to live within their means.

“It is ludicrous that St Hugh’s expects postgraduate students to have money set aside to go to the cinema and nightclubs, and for ‘entertaining’.”

When asked what changes she would like to see in postgraduate funding, Blears said: “I would like to see Oxford do more to support students from poorer backgrounds, but I also believe we need a proper system of financial support and loans for postgraduate education.”

St Hugh’s College and David Willetts, the Minister for Universities and Science, declined to comment.

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3 Comments

Damien Shannon

21st February 2013 at 16:08

Good article. Just to clarify one point of law. I am not simply “claiming” that the first sentence of Article 2 of Protocol No. 1 of the European Convention guarantees a right of access to Higher Education, rather, it is a matter of fact that this is what the Convention guarantees. The crucial Strasbourg jurisprudence in this field remains the ‘Belgian Linguistics’ case. The first sentence of A2P1 guarantees to those within the jurisdiction of the high contracting parties to the Convention the right, in principle, to avail themselves of the means of instruction existing at a given time. However that right is a qualified right, and it can be limited when the restrictions that serve to limit access can be reasonably and objectively justified. It is, for instance, lawful to restrict access to those most academically suitable, and those able to pay fees.

In ‘Sahin v Turkey’ the European Court of Human Rights explicitly acknowledged for the first time that the first sentence of A2P1 applies to Higher Education institutions, and that the right had a civil character. This has been confirmed in multiple judgments since, including ‘Temel & Others v Turkey’, where the Court clarified that the first sentence of A2P1 guarantees a right of access to *any* higher education institution existing within a high contracting state at a given time.

In England, Universities are granted a high degree of autonomy by government in selecting students (especially postgraduates). Accordingly they can devise their own restrictions on entry, but those restrictions must be compatible with the Convention. They must not deny the very essence of A2P1, and they must not unjustly discriminate in how the benefit is conferred (A14).

In order to be justified, the restriction must serve a legitimate aim and the means employed must be proportionate. Oxford seek to restrict access to those financially able to complete study. I am not sure whether that will constitute a legitimate aim to the satisfaction of the courts, I have argued it does not, mainly because no other University operates an equivalent policy. However, assuming it does, the means employed must be proportionate to the aim sought.

I am arguing that needing funds for rent you are not being charged, or College halls you are not obliged to partake in, or nightclub entry fees, or anything else that is dreamed up, constitutes a disproportionate restriction on the aim sought since it is self evident these are not things you need be able to afford in order to complete study.

Tom

21st February 2013 at 17:31

I wonder if you had ever objected this system if you had not been denied a place to study there. You applied with the knowledge that a financial guarantee was needed but you did not immediately bring this to court. Although your arguments are valid to a point, it all sounds a bit hypocritical to me.

Damien Shannon

21st February 2013 at 19:39

@Tom – fair point. Under Section 7 of the Human Rights Act you may not seek remedy from the courts against a decision or action of a public authority unless you do, or are set to, constitute a victim of that action. Accordingly, had I not fallen foul of the policy, there would have been no basis in law for court action. You cannot simply bring a claim on a point of principle under the Human Rights Act (whereas, under ordinary ‘judicial review’, you need only have locus standi, which is interpreted quite widely by the courts, whereas S7 HRA is very restrictive).

The reason action was not brought straight away after I received an offer, I have explained repeatedly. At the time you receive an offer of study, it is not always possible to know what financial resources you will have access to. My capacity to undertake study was contingent on the outcome of several things I was not aware of in March 2012. I did not know whether I would meet the academic conditions (and did not find out until very late, 23 August). I did not know whether I would be awarded any funding by the University or College, or any other source. I did not know whether I would qualify for a Career Development Loan (you cannot even apply for this until 8 weeks before the course is scheduled to begin). I did not know whether I would qualify for a Postgraduate Student Current Account. I did not know, at the end of this process, what actual resources would be available to me, and whether there would be a shortfall, and if there was a shortfall, whether it would be possible for others to underwrite the difference on my behalf (it was not).

The point you raise was raised by the College’s QC in submissions – that there was a shift in my approach, from playing along with the mechanics, to a point of principle. But that distinction is artificial, as the Judge pointed out. Until the mechanics of trying to source funding play out, there was no way for me to know whether I would be able to meet the financial conditions. Until I had an answer to this point, there was no basis in law for bringing a claim before the courts, even if I didn’t agree in principle with the provisions of the financial guarantee, which I did not and never have done.

So, I do not agree with your assessment of its being hypocritical, but I am glad it is not your judgment upon which my claim rests.